Enforcement of Intellectual Property

Copying a book or CD without paying, using pictures or logos on a website without consent of the owner or using a trade name that has already been taken by another company. These acts can all constitute infringements of intellectual property rights (in the previous examples consecutively copyright, trademark and trade name rights). An infringement is every act, which is exclusively reserved to the intellectual property owner, committed by a third party without the owner’s consent. Exclusive rights of the owner are to use, make public, copy or exploit the intellectual property.

Legal action against infringement

When an owner discovers an infringement of his IP-right, he is responsible for enforcement. Only when the infringement is harming the pubic interest (e.g. in case of counterfeit medicine) the Public Prosecution can step in and conduct criminal investigations. In most cases, though, the owner has to resort to civil remedies. In that case the first step is to access what the scope of the infringement is and whether the infringer had knowledge of using a protected intellectual property. If somebody put a picture on his website in good faith, a written request to remove that picture and to withhold from future infringing the owners IP-right can be enough.

Act quick and decisive!

If the infringer is completely aware of his actions, however, and deliberately copies someone’s product or uses someone’s intellectual property for his own gains, the owner has to take swift and adequate action. Think of all the counterfeit watches and designer bags or the increasing black market for illegal copies of DVD’s and CD’s. In these situations a demand letter will hardly have the desired effect. Besides, the damages for the owner will accumulate quickly, not only financially (lost profits) but also the damage to the products or brands image. Demanding an injunction in court is the most obvious legal action.

Interim relief proceedings for IP infringement

In IP-cases parties mostly litigate in interim relief proceedings. The owner / claimant generally demands that the infringer be prohibited from (further) infringing, subject to a (hefty) penalty for every time the infringer breaches the injunction. The owner can also claim recall and destruction of all counterfeit products. Lastly the financial demands: surrender of profits, damages and full compensation of the legal costs.

Damages and full legal costs

Examples of damages are loss of profits, loss in value and costs. In general it is in the Netherlands not possible to claim full damages in an interim relief proceedings as the judge can merely grant injunctive relief and is not allowed to give final binding decisions. But under circumstance the judge can grant an advance payment on the final damages. For full compensation of the damages the extent has to be assessed in a proceedings on the merits. Contrary to other civil cases, the court has to grant full compensation of legal costs in cases concerning the enforcement of IP rights. This is exceptional in the Netherlands as it is standard practice that only a part (according to a fixed rate) of the legal costs are awarded to the winning party.